S. N. BHATTACHARJEE, J. ( 1 ) THE substantive question of law involved in this appeal is whether the first appellate Court while reversing the judgment of the trial Court was justified in holding that the Nirupan Patra executed by Dhukhishyam Barman in favour of the appellant No. 1 was a collusive and sham transaction despite the fact that the plaintiff himself derived benefit therefrom. ( 2 ) THE respondent No. 1 herein and his two sisters filed Title Suit No. 66 of 1985 in the trial court alleging that the appellant No. 1 along with other appellants had been threatening them with dispossession on the basis of a Nirupanpatra purportedly executed by his father, Dukhishyam Barman, dt. 5-4-1972 although such a deed was vitiated by fraud and undue influence as Dukhishyam was aged about 95 years and had been suffering from physical infirmities which rendered him incapable of understanding about the nature of the transaction. The aforesaid Nirupanpatra which seeks to devise and distribute the immovable properties among two sons and wife of Dhukhishyam is dispropertionate shares to the exclusion of the daughters of the executant is not binding upon the plaintiffs. The learned trial Judge dismissed the title suit holding that Nirupanatra was a valid and genuine document. ( 3 ) REVERSING the said decision of the trial Court the first appellate court dereed the suit by holding that Nirupanpatra was a sham transaction and execution of such deed was result of collusion between the defendant No. 1 (appellant No. 1 herein) and the witnesses to the deed. ( 4 ) IN this appeal the decision of the first appellate Court has been challenged. ( 5 ) THE learned counsel appearing for the appellant has contended that the conclusion arrived at by the first appellate Court on the basis of the facts is a legal one and such legal conclusion should be set aside as the same is based on non-consideration of relevant meaterials on record. ( 5 ) THE learned counsel appearing for the appellant has contended that the conclusion arrived at by the first appellate Court on the basis of the facts is a legal one and such legal conclusion should be set aside as the same is based on non-consideration of relevant meaterials on record. According to the learned counsel, the learned first appellate Court below failed to appreciate that the plaintiff signed a petition of compromise in Title Suit No. 608 of 1970 admitting his one-fourth shares in Dag No. 230 on the basis of Nirupanpatra and also failed to consider the admission of the P. W. 1 that he initiated a proceeding under S. 144 of the Criminal Procedure Code in respect of Dag No. 17 which he got by virtue of Nirupanapatra. The learned counsel has further argued that the first appellate Court instead of decreeing the suit ought to have sent the suit back on remand by giving opportunity to the defendant to prove the attestation of Nirupanpatra by examining other attesting witnesses. ( 6 ) IN coming to his finding the learned Judge took into consideration the facts which transpired from the evidence on record, the inner evidence arising from the contents of the document, conduct of the parties and fourthly the suspicious circumstances surrounding the execution of the deed. ( 7 ) THE facts which transpire from the evidence are that Dukhishyam was an illiterate and was aged more than 90 years at the time of execution of the deed and have been suffering from various ailments of old age. It is in the evidence that although the sons lived with the parents but they were in separate mess. The executant, Dukhishyam was inimically disposed with two other attesting witnesses, Radha Krishan Barman and Kanailal Barman. The evidence further reveals that out of the three attesting witnesses, Jagdish Barman denied to have witnessed the execution of any document by Dukhishyam Barman. He also denies his signature in the Nirupanpatra. The learned appellate Court has found that other two attesting witnesses who are inimically disposed with the executant were not at all examined. The hostility between the attesting witnesses and the executant is evidenced by Title Suit No. 608/70 filed by Radha Krishna Barman, one of the attesting witnesses, against the executant, Dukhishyam and others. When the (Ext. The learned appellate Court has found that other two attesting witnesses who are inimically disposed with the executant were not at all examined. The hostility between the attesting witnesses and the executant is evidenced by Title Suit No. 608/70 filed by Radha Krishna Barman, one of the attesting witnesses, against the executant, Dukhishyam and others. When the (Ext. C/1) was executed and registered the Title Suit No. 608 of 1970 was pending. It is also in evidence that Kanailal Barman, the 3rd attesting witness, was also not in good terms with Dukhishyam. ( 8 ) THE first appellate Court also found that Ext. A/2 were two kobalas executed by defendant No. 1 in favour of the defendants 3 to 7 who are relations of Radha Krishna Barman and that Ext. E/1 was executed on 25-5-1972 i. e. within two months after the execution of Nirupanpatra (Ext. C/1 ). In Ext. E/1 Dukhishyam Barman was a witness who put L. T. I. and his name was written through the pen of Kanailal Barman. From the evidence of D. W. 5 who is one of the vendees it transpires that they asked Dukhishyam to be a witness to deed as Nirupanpatra did not come out of registration office till then. According to the learned Court below this is an instance of collusive act on the part of Bijan, defendant No. 1 on the Title Suit. ( 9 ) THE learned counsel for the appellant has further argued that Ext. H is the solenama dated 22-5-1973 filed in Title Suit No. 608 of 1970 wherein the present respondent No. 1 figures as defendant No. 11 after being substituted in place of their father Dukhishyam and by this solenama one-fourth share of the respondent No. 1 plot No. 230 was declared. This share in plot No. 230 was received by the respondent No. 1 by virtue of Nirupanpatra, Ext. C/1. According to learned counsel, the respondent is, therefore, estopped from challenging the validity of Ext. C/1 inasmuch as he himself has claimed title in plot No. 230 on the basis of Ext. C/1. The learned appellate Court held that the said suit was filed by Radhakrishna Barman against Dukhishyam Barman and Ors. and the appellant herein was one of the defendants in that suit and that such a collusive decree was necessary to lend support to the earlier collusive transaction evidenced by C/1. C/1. The learned appellate Court held that the said suit was filed by Radhakrishna Barman against Dukhishyam Barman and Ors. and the appellant herein was one of the defendants in that suit and that such a collusive decree was necessary to lend support to the earlier collusive transaction evidenced by C/1. ( 10 ) AS to the inner evidence arising outof the contents of the deed the learned court below found that the daughters had been deprived of the bounty of their father and that major portion of the property has been given away to the defendant No. 1. The learned appellate Court found that the executant was under the control and cominion of the appellant. ( 11 ) THE learned appellate court also found it suspicious as to why Dukhishyam would call upon Krishna and Kanailal of the witnesses to the deed particularly when litigation was pending between the executant and the witness Radhakrishna. It also appeared suspicious to him that the property obtained by the defendant No. 1 appellant by virtue of Ext. C/1 was sought to be demised in favour of son and other relations of Radhakrishna Barman with undue haste. ( 12 ) ON the basis of such above materials on record the learned appellate Court came to the finding that Ext. C/1 is a collusive and sham transaction and not binding upon the plaintiffs/ respondents. ( 13 ) THE finding of the learned appellate Court that the solenama decree passed in T. S. 608 of 1970 is collusive is neither justified nor based on any materials on record. The plaintiffs who was defendant 11 in T. S. 608 of 1970 got 4 annas share in plot No. 230 by virtue of Nirupan Patra Ext. C/1 and no other source of acquisition of title has been disclosed anywhere. The plaintiffs while challenging the validity of Nirupanpatra did not disclose in the plaint that the decree of compromise was passed in his favour in title suit No. 608 of 1970 whereby his one-fourth share in plot No. 230 was declared. He did not challenge such decree as collusive in the plaint nor did he disclose the circumstances under which he had to agree to sign compromise petition filed before the Court in connection with title suit No. 608 of 1970. (Ext. He did not challenge such decree as collusive in the plaint nor did he disclose the circumstances under which he had to agree to sign compromise petition filed before the Court in connection with title suit No. 608 of 1970. (Ext. (sic)) ( 14 ) IT has been disclosed in cross-examination that the solenama decree was passed in his favour declaring his title to the extent 4 annas in plot No. 230. When the plaintiff himself did not explain the circumstances under which solenama decree was passed and his title in plot No. 230 was declared to such extent as it was given to him in the Nirupanpatra, the learned appellate court is not justified in holding that such sole decree (Ext. H1) is a collusive one. The learned Court was of the opinion that the plaintiff's father Dukhishyam was originally one of the defendants in title suit No. 608 of 1970 and after his death this plaintiff was substituted by an application for substitution under Order 20 Rule 10 CPC certified copy of which has been marked as Ext. (d1 ). According to learned court, had the Nirupanpatra being executed by Dukhishyam he would definitely retire from the suit yielding place to the plaintiff by informing the Court through his written statement. The fact that he contested the suit till death only indicates that no Nirupanpatra was executed. The learned Court below has, however, not noticed that only the plaintiff of this suit was substituted although the defendants were also the heir of Dukhishyam. It was the duty of the plaintiff also to bring to the notice to the Court that other successers of Dukhishyam including defendant No. 1 ought to have been added as party along with him. For getting benefit under the deed of Nirupanpatra the plaintiff herein remained silent without disclosing the name of defendant No. 1 as one of the heirs of Dukhishyam and signed the solenama whereby his one-fourth interest in plot No. 230 was declared. Nirupanpatra was executed on 6-4-1972 and sole decree (Ext. H1) was passed on 22-5-1973. the learned Court below is not warranted to come to such finding without perusing the written statement filed in title suit No. 608 of 1970. The following observation was made by the learned trial Judge in his Judgment,"from Nirupan Deed (Ext. Nirupanpatra was executed on 6-4-1972 and sole decree (Ext. H1) was passed on 22-5-1973. the learned Court below is not warranted to come to such finding without perusing the written statement filed in title suit No. 608 of 1970. The following observation was made by the learned trial Judge in his Judgment,"from Nirupan Deed (Ext. C1) I find plaintiff No. 1 got amongst other dags, dag numbers 230 and 17. P. W. 1 in his evidence further stated that he filed 144 case in respect of dage No. 17 which he got in the Nirupan. After the above statement by P. W. 1, himself and also the documents stand against him, can at present P. W. 1 dispute and deny about Nirupan? According to me the plaintiff, specially P. W. 11, cannot say anything against Nirupan. " ( 15 ) AFTER this finding the respondent herein cannot be heard to say that Nirupanpatra is a false and fraudulent document and that it was not acted upon by him. The learned Appellate Court expressed his doubt over the genuineness of Nirupanpatra by observing as follows :-"we must not forget that the plaintiff in Title Suit No. 608 of 1970 is none else but one of the attesting witnesses of the Nirupanpatra alleged to have been executed by Dukhishyam. So the collusion betweenthe defendant No. 1 and the plaintiff of Title Suit No. 608 of 1970 is patent. I find no substance in the contention of the respondents. It is also undisputed now that Dukhishyam Barman. father of the plaintiffs and the defendant No. 1, was one of the defendants in the Title Suit No. 608 of 1970 brought by Radhakrishna Barman by filing a written statement. The substitution petition was filed on 22-7-1974 after the death of Dukhishyam Barman on 8-6-1974. Had Dukhishyam Barman really executed any Nirupanpatra in respect of his properties, he would have surely retired from contest after informing the Court about the execution of the Nirupanpatra on 6-4-1972 and that he has given his share in the suit property of Title Suit No. 608 of 1970 to his eldest son Bhaskar Barman. Had Dukhishyam Barman really executed any Nirupanpatra in respect of his properties, he would have surely retired from contest after informing the Court about the execution of the Nirupanpatra on 6-4-1972 and that he has given his share in the suit property of Title Suit No. 608 of 1970 to his eldest son Bhaskar Barman. " ( 16 ) FOR the reasons stated above the finding of the appellate Court is not warranted by the materials on record and his conclusion is based on inconsequential inferences whereby he has reversed the finding of the trial Judge although the same was based on cogent reasons. ( 17 ) INTERFERENCE with the finding of fact arrived at by the 1st appellate Court, as the final Court of fact is barred under S. 100 CPC, but when such finding is based upon non-appreciation of the conduct of the parties in proper perspective and misapplication of the principles of law in declaring the deed void and collusive when such deed is very vital constituting the foundation of title the High Court can interfere in Second Appeal under S. 100 CPC. The law is well settled that when a party takes the benefit of a transaction he cannot challenge such transaction as collusive and void. This is based upon well-known doctrine of estoppel as also the doctrine that the person cannot be allowed to approbate and reprobate. ( 18 ) IN Prafulla Chandra v. Chotanagpur Banking Association Ltd. reported in AIR 1965 Patna 502, the Apex Court held,"the doctrine of approbation and reprobation is akin to the law of election and estoppel applies to those cases where a person has elected to take benefit otherwise than on merit and the claim in the litigation under an order to which benefit he could not have been entitled except for the order. Another criterion is that the person receiving a benefit under the order must have a choice between two rights and that after the exercise of the choice restitution was impossible or inequitable. Another criterion is that the person receiving a benefit under the order must have a choice between two rights and that after the exercise of the choice restitution was impossible or inequitable. " ( 19 ) IN Bhanu Ram v. Baijnath reported in AIR 1961 SC 1327 , Supreme Court held,"the principle that a person may not approbate and reprobate expresses two propositions, first that the person in question, having a choice between the two courses of conduct, is to be treated as having made an election from which he cannot resile, and second, that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has pursued and with which his subsequent conduct is inconsistent. " ( 20 ) IN Ram Charan Das v. Girija Nandini reported in AIR 1966 SC 323 , the Apex Court has held,"that a party who has taken benefit cannot challenge. " ( 21 ) IN Adimoola Padayachi v. Kasi reported in AIR 1943 Madras 701, it has been held,"when the person acquiesced in the family arrangement and accepts the benefits given thereby is estopped from disputing the arrangement. " ( 22 ) IN Purna v. Sarojendra reported in AIR 1953 Calcutta 251, it has been held,"where a particular statement in an earlier suit debars the party from taking contradictory statement in a later suit? A party to a suit is estopped from setting up a plea contrary to his pleading which he had successfully set up in the previous suit. " ( 23 ) THAT being the position of law the first appellate Court has erred in law and acted with material irregularity in setting aside the judgment passed by the learned trial Judge. The judgment and decree of the first appellate Court is, therefore, set aside. The judgment of the trial Judge is hereby affirmed. The plaintiffs suit is, therefore, dismissed on contests. No order as to costs. The Second Appeal is disposed of accordingly. Appeal dismissed.